New FEHC Regulations: The Galactic Expanse of National Origin Law in California

Seyfarth Synopsis: Employers, take note—the long-awaited, new FEHA regulations related to national origin are about to take effect!Come July 1, 2018, new regulations on national origin under California’s Fair Employment and Housing Act reflect a broad definition of national origin, codify existing case law, and intensify already strict regulations prohibiting harassment, discrimination, and retaliation based on national origin. The regulations will apply to applicants and employees, irrespective of documentation status. (The prior FEHC regulations on national origin addressed only English-only policies and incorporated defenses generally applicable to other protected bases.)

Your Eyes Can Deceive You. Don’t Trust Them.

Whether it’s the sandy dunes of Tatooine, or the lush forest of Endor, everyone has a national origin, even if it’s in a galaxy far, far away. The new regulations, which reflect currently existing California law, expansively define “national origin” to include an individual’s or ancestor’s actual or perceived:

physical, cultural, or linguistic characteristics associated with a national origin group,

marriage to or association with person of a national origin group,

tribal affiliation,

membership in or association with an organization identified with or seeking to promote the interest of a national origin group,

attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group, and

name associated with a national origin group.

Lest anyone try to find some wriggle room here, the regulations emphasize that “national origin groups include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.” This might mean that your newly married cousin now claiming Wookiee heritage may actually be protected under the new regulations.

Do You Know Droidspeak?

Adhering to case law and statutory provisions, the new regulations address language restriction policies—including English-only policies—only under the very narrow circumstances already set forth in the FEHA:

the language restriction is justified by “business necessity,”

the language restriction is narrowly tailored, and

the employer has told employees about how and when the language restriction applies and what happens to employees who violate it.

The regulations, following the elements set forth in FEHA, define “business necessity” so narrowly that most employers may find it difficult to show. A language restriction is justified by business necessity only where:

the restriction is necessary to the safe and efficient operation of the business,

the restriction effectively fulfills the business purpose it is supposed to serve, and

there is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

The regulations state that a language restriction is not justified if it either promotes business convenience or is due in part to customer or co-worker preference. In any event, English-only restrictions cannot apply to employees’ non-work time (such as breaks, lunch, unpaid employer-sponsored events).

Discrimination against an employee’s accent may also be national origin discrimination, unless the accent interferes materially with the ability to perform the job in question.

Requiring English proficiency may also be discriminatory, absent “business necessity,” to which the regulations make these factors relevant:

the type of proficiency required,

the degree of proficiency required, and the nature, and

the job duties of the position.

The regulations allow that an employer may ask applicants or employees about their ability to speak, read, write, or understand any language (including non-English languages), but inquiries must be justified by a business necessity.

Aren’t You A Little Short For An X-Wing Pilot?

Giving hope to every Ewok who ever dreamed of being an X-Wing Pilot, the new regulations also clarify (as did prior FEHC selection criteria regulations) that height and weight requirements which create a disparate impact on the basis of national origin are forbidden.

Thus, come July 1, the new regulations clarify and forbid height and weight requirements that disproportionally exclude members of a particular national origin from a position, unless, of course, the requirements are job related and advance a business necessity. Even then, the challenged requirement could be unlawful if the requirement’s purpose could be more effectively achieved with less discriminatory measures.

It is also unlawful for an employer or other covered entity to seek, request, or refer applicant or employees based on national origin to assigned positions, facilities, or geographical areas of employment based on national origin, unless the employers have a “permissible defense” such as job relatedness or a bona fide occupational qualification.

These new regulations apply to undocumented applicants and employees just as they would with any other applicant. Any inquiry into an applicant or employee’s immigration status is unlawful unless there is clear and convincing evidence that the inquiry was needed to comply with federal immigration law.

Wait, I Know That Laugh …

Some FEHA regulations remain unchanged, such as those forbidding discrimination, harassment, and retaliation based upon national origin. The use of derogatory language or slurs based on national origin, and threatening to contact the immigration authorities about an individual’s immigration status also remain unlawful.

Protections for those holding driver’s licenses issued pursuant to Vehicle Code section 12801.9 also remain unchanged. That provision allows those who are not in the country legally to obtain a driver’s license if they can provide valid proof of identity and California residency. Any discrimination against one holding such a license may be considered national origin discrimination under FEHA.

And, in the same vein, employers must not require applicants or employees to present a driver’s license, unless the law requires the license or permits the employer’s requirement. Further, failing to apply the requirement uniformly or for a legitimate business purpose may amount to discrimination because of national origin.

Employers, Take The High Ground:

Employers seeking to limit FEHA exposure should heed these takeaways:

National origin is broadly defined to include not just an individual’s national origin, but the individual’s spouse or those with whom the individual is associated, and any person’s perceived national origin.

Identify and modify English-only polices to ensure they comply with the strict requirements set out in the regulations.

Implement recruitment techniques to safeguard against excluding potential applicants based upon national origin.

Ensure that employment is based on objective criteria, to minimize discrimination claims.

Remember that customer preference is not a justification for any discrimination based on national origin.

Workplace Solutions: Complying with the new regulations may seem like getting through the Kessel run in 12 parsecs, but with some preparation, and a little help from the Seyfarth force, compliance is certainly manageable. For more advice on how these regulations may affect your business, reach out to your favorite Seyfarth attorney.

About

Published by Seyfarth Shaw LLP, this blog is for in-house attorneys, HR professionals, business owners, and managers who face real issues on a daily basis and need practical solutions to address them. We aim to provide timely, topical information on the challenges that California employers face. Unlike blogs that simply provide legal updates, this blog will have a running series of Workplace Solutions that will address evolving areas of interest, including California leaves of absence, recruiting and hiring, trade secrets, and the use of social media.